Date: 20080327
Docket: IMM-972-06
Citation: 2008 FC 387
Ottawa, Ontario, March 27, 2008
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
DIANA MONICA VALDEZ MENDOZA
CAMILA FUENTES VALDEZ
ALEXA FUENTES VALDEZ
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Diana Monica
Valdez Mendoza and her daughters, Camila Fuentes Valdez and Alexa Fuentes
Valdez, are citizens of Mexico who claimed refugee protection. Ms. Valdez
Mendoza claimed a well-founded fear of persecution at the hands of her former
husband who physically abused her and threatened her children. The Refugee
Protection Division of the Immigration and Refugee Board (Board or RPD)
dismissed the claim to protection because it found that adequate state
protection existed and because the claimants had an internal flight alternative
"elsewhere in Mexico."
[2] This
application for judicial review is allowed because the Board's finding with
respect state protection was unreasonable and because it erred in law with
respect to its consideration of an internal flight alternative.
The Decision of the RPD
[3] The
Board found "that on a balance of probabilities, the claimant's story with
regard to the domestic abuse she was exposed to, is generally credible."
[4] The
Board went directly from its credibility finding to the issue of state
protection.
[5] The
Board did not consider whether Ms. Valdez Mendoza would have a well-founded
fear of persecution if she returned to Mexico. This is surprising, given that Ms.
Valdez Mendoza testified that the last episode of threatened violence occurred
in September of 2001. Subsequently, Ms. Valdez Mendoza divorced her husband
and he entered into a new relationship. The only evidence of any difficulty subsequent
to 2001 was one occasion in November of 2002 when Ms. Valdez Mendoza's former
husband yelled from outside the house, asking for one of his daughters to come
to the window. There was also a series of anonymous phone calls in November of
2004, where the anonymous caller would hang up before the phone was answered.
Thereafter, in December of 2004, Ms. Valdez Mendoza and her children left for Canada
and, in January of 2005, they claimed protection.
[6] With
respect to state protection, the RPD noted Ms. Valdez Mendoza's evidence that
she had approached the police "more or less" eight times, but each
time she was refused help because it was a domestic dispute. The RPD made no
clear finding that this evidence was untrue, although it observed that it was
"at odds" with the documentary evidence of country conditions. A
clearer finding was required if the Board was rejecting Ms. Valdez Mendoza’s
evidence on this point.
[7] The
Board then went on to analyze the documentary evidence. In material part, its
reasons were:
There is documentary evidence
that some police officers in Mexico are corrupt and that women are being abused
there. However there are remedies available to women and the document deals
with the current situation in Mexico, the legislative contact [sic] and legal
remedies and the initiatives and services available to women, especially in the
Federal District in Mexico City. The panel refers to other documents which are
germane to this "issue". [footnotes omitted]
[8] The
documents relied upon by the Board reported that:
·
Mexico has administrative, civil, and criminal laws that sanction
family violence;
·
state and federal legislation in Mexico includes remedies for
women who are victims of violence;
·
a number of initiatives, programs, and projects have been
instituted in Mexico for women who are victims of violence;
·
shelters are available in Mexico to temporarily accommodate women
and children who are victims of violence; and
·
Mexican government initiatives to assist women confronted with
violence include telephone helplines, support for shelters, and prevention and
awareness campaigns.
[9] The
RPD then concluded that "state protection is adequate in Mexico."
[10] For
reasons that are not clear, having found that state protection existed throughout
all of Mexico, the Board went on to consider whether Ms. Valdez Mendoza had an
internal flight alternative. The Board concluded that it "does not
believe that the claimant cannot be elsewhere in Mexico in safety and that it
would not be unreasonable to seek refuge there."
Standard of Review
[11] The
Board's conclusion about the adequacy of state protection is, in my view,
reviewable against the standard of reasonableness. See: Hinzman v. Canada
(Minister of Citizenship and Immigration) (2007), 362 N.R. 1 at paragraph
38 (F.C.A.), and Dunsmuir v. New Brunswick, 2008 SCC 9 at
paragraphs 55, 57, 62, and 64.
[12] Reasonableness
requires consideration of the existence of justification, transparency, and
intelligibility in the decision-making process. It is also concerned with
whether the decision falls within a range of acceptable outcomes that are
defensible in respect of the facts and law. See: Dunsmuir at paragraph
47.
Application of the Standard
of Review to the Board’s Finding with respect to State Protection
[13] As
noted above, in its reasons, the RPD concluded that the documentary evidence
established that "some police officers in Mexico are corrupt and that
women are being abused there." However, this acknowledgment did not
accurately assess the documentary evidence that the Board relied upon.
[14] The
documents relied upon by the Board also stated:
·
violence against women in Mexico was widespread;
·
Mexican society generally considers domestic violence to be a
private matter and views it as completely normal behavior; and
·
violence against women remains largely unpunished in Mexico.
[15] The
RPD failed to explain its selective reliance upon the documentary evidence and
specifically failed to deal with the evidence that directly contradicted its finding
that protection was available to women in Mexico.
[16] By
failing to deal with the evidence that directly contradicted the information
the RPD relied upon (and that supported the testimony of Ms. Valdez Mendoza),
the Board's decision lacks, in the words of the Supreme Court of Canada in Dunsmuir,
justification and intelligibility. It follows that the decision is not
defensible in respect of the facts and law and so the decision does not fall
within the range of acceptable outcomes. As a result, the decision with
respect to state protection is unreasonable and must be set aside.
The Finding of an Internal
Flight Alternative
[17] In
Rabbani v. Canada (Minister of Citizenship and Immigration)
(1997), 125 F.T.R. 141 (T.D.), the Court wrote, at paragraph 16, as follows:
The conclusion of the Board as to the existence of an IFA is equally
flawed. The Board in its decision fails to identify exactly, where in Afghanistan the Applicant could reasonably
be expected to find a safe haven. Rather, the Board refers to "the area
controlled by General Dostam", the "area outside Kabul" and "the areas outside the
control of the Jamiat-e-Islami" as the general areas where the Applicant
could be expected to flee. The conclusion as to the existence of an IFA
requires more than the identification of the approximate area where the agent
of persecution is thought to be in control and a general conclusion that the
claimant is free to flee elsewhere. A specified geographic location must be
identified where the conditions are such as to make it a realistic and
attainable safe haven. That in turn requires some discussion as to the
prevailing conditions within the identified location. [footnotes omitted]
[18] I
am satisfied that the RPD committed the same error in the present case. If one
substituted the word "Mexico" for the word "Afghanistan"
and the phrase "elsewhere in Mexico" for the three general areas
described in Rabbani, the RPD's error is fully explained.
[19] This
is an error of law that vitiates the finding of an internal flight alternative.
Conclusion
[20] For
these reasons, the application for judicial review will be allowed. Counsel
posed no question for certification, and I agree that no question arises on
this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the
decision of the Refugee Protection Division dated February 1, 2006, is hereby
set aside.
2. The matter is remitted for redetermination by a differently
constituted panel of the Refugee Protection Division.
“Eleanor R. Dawson”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-972-06
STYLE OF CAUSE: DIANA MONICA VALDEZ MENDOZA ET AL., v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION,
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 6, 2008
REASONS FOR JUDGMENT
AND JUDGMENT: DAWSON, J.
DATED: MARCH 27, 2008
APPEARANCES:
HOWARD P. EISENBERG FOR
THE APPLICANTS
KRISTINA DRAGAITIS FOR
THE RESPONDENT
SOLICITORS OF RECORD:
HOWARD P. EISENBERG FOR
THE APPLICANTS
BARRISTER AND SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR
THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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